NY Times Takes On Our Broken Patent System

from the that's-a-patent dept

Well, this is nice to see. Charles Duhigg and Steve Lohr at the NY Times have a nice long piece highlighting just how broken the patent system is today. It kicks off with an anecdote of the type of story we hear about all the time: where a startup innovator gets threatened by a patent holder (in this case, not a troll, but a larger company), and the lawsuit effectively kills the startup. Even though it actually won in court, after spending an astounding $3 million fighting the lawsuit, the company was basically out of money... and was forced to sell itself to the company who had sued it, knowing that it still faced another five patent lawsuits. That's not a unique story. The company who sued, Nuance, defended its actions in the articles with this line of pure crap:

“Our responsibility is to follow the law,” said Lee Patch, a vice president at Nuance. “That’s what we do. It’s not our fault if some people don’t like the system.”

No. "Following the law" does not include shaking down competitors in your space, taking them to the brink of bankruptcy and then getting them to sell to you at firesale prices.

Perhaps more interesting in the article is the talk about Apple's awakening on how powerful patents could be used as a weapon against others, all stemming from its legal fight with Creative Technologies over a ridiculously broad patent for a digital music player. Rather than fight Creative, Apple just paid the company $100 million to go away. At the time, we wrote about how unfortunate it was that the company who succeeded in the market basically had to pay off the company who couldn't compete. But what we didn't realize was that it also turned Apple into a vociferous patent-hungry beast. The NY Times report notes that, right after this, Steve Jobs made it clear to his staff that Apple now needed to "patent everything."

Soon, Apple’s engineers were asked to participate in monthly “invention disclosure sessions.” One day, a group of software engineers met with three patent lawyers, according to a former Apple patent lawyer who was at the meeting.

The first engineer discussed a piece of software that studied users’ preferences as they browsed the Web.

“That’s a patent,” a lawyer said, scribbling notes.

Another engineer described a slight modification to a popular application.

“That’s a patent,” the lawyer said.

Another engineer mentioned that his team had streamlined some software.

“That’s another one,” the lawyer said.

[....] The disclosure session had yielded more than a dozen potential patents when an engineer, an Apple veteran, spoke up. “I would like to decline to participate,” he said, according to the lawyer who was at the meeting. The engineer explained that he didn’t believe companies should be allowed to own basic software concepts.

Unfortunately, very few companies seem willing to take a stand on this, even as many, many engineers feel the way that last engineer feels. I spend a lot of time with engineers in Silicon Valley, and I have trouble thinking of any who think the patent system is a good thing.

Apple's former General Counsel, Nancy Heinen, has a good quote in the article highlighting part of the problem:

"Think of the billions of dollars being flushed down the toilet... When patent lawyers become rock stars, it’s a bad sign for where an industry is heading,."

It's a very bad sign, but there seems to be little appetite by anyone to do anything to fix the wider problem. And despite Apple's foray into being a massive patent warrior, attacking tons of other companies, it still hasn't occurred to many people just how broken the system remains. The NY Times piece spends some time looking at Patent 8,086,604, an Apple patent issued last year, which many refer to as the Siri patent, as it covers a "universal interface for retrieval of information in a computer system." Basically, a way to search multiple databases at once. As a separate companion piece to the full article highlights, that patent was rejected 8 times before the examiner was "worn down" and approved it, despite no meaningful changes in the language.

See all those red dots? Those are times the patent got rejected. See the green dot? That's when it got approved. The black dot that follows right after the green dot? That's when Apple started suing with it. The NY Times even gets patent examiners to admit that their process is more or less random, quoting one admitting that he doesn't really have enough time to "get it right every time" as well as a former patent examiner who notes:

"If you give the same application to 10 different examiners, you'll get 10 different results..."

That's not a functioning system. It's the opposite. It's a lottery... where the "winners" get to take billions of dollars away from actual innovation. It's becoming a national disgrace.

It's entirely destructive. It is not used to truly help either party except the lawyers. Measuring success by being less harmed than a competitor is not a way to show causing the initial action was good overall.

Becoming!?

"Becoming" a national disgrace?!

It's a national disgrace NOW. The fact that the patent for "system and method for swinging on a swing" was issued in 2002 (later reexamined and rescinded), or method for thermally refreshing bread (i.e. "toasting"!), cutting crust of PB&J, one-click, etc.

Plus they just raised the fee for request to reexamine shoddy patents from about $2,250 to about $17k!

The whole thing is a mess, and it has huge negative consequences, particularly in software.

'where the "winners" get to take billions of dollars away from actual innovation'

the winners being, not just the company that wins but also those individuals that are 'encouraged' to approve patents. the losers, just like in the cases involving the entertainment industries over copyright, are everyone else, and that includes the country! so strange to stifle advances in technology but then continuously moan because someone else, somewhere else has had or developed an idea.

22 year old

> The NY Times even gets patent examiners to admit that their process is more or less random, quoting one (a 22-year-old who is supposed to know if this stuff is actually new or not) admitting that he doesn't really have enough time to "get it right every time"

Engineers in Silicon Valley...

Unfortunately, very few companies seem willing to take a stand on this, even as many, many engineers feel the way that last engineer feels. I spend a lot of time with engineers in Silicon Valley, and I have trouble thinking of any who think the patent system is a good thing.

I don't know how any honest person can defend this system. If you're just trying to make a buck by taking advantage of others at least have the courage to admit as much. You can bet your life that the moneyed interests who benefit from this disfunction will fight with all they have to keep the gravy train rolling.

Re: Re: Re: 22 year old

Oh come on. You actually think I ignored the fact rather than misread the report? I know you have to attack us any time we show patents are bullshit, but you should be at least slightly realistic.

You think way too highly of your own musings. You aren't "showing" that patents are bullshit; you are merely opining that patents are bullshit, and your opinions about the subject are barely worth the digital space on which they are printed. There's a lot in that NYT article that you failed to discuss because it does not support your narrative of "patents are bad!" which is typical of Techdirt.

Re: Re: Re: Re: Re: Re: 22 year old

And anyone who has drawn conclusions based only on the data you present is naive, or a zealot. Or both.

I didn't say "only the data I present here." I said "the data." I've looked at all kinds of data. None of it suggest the patent system is working... other than for a few patent lawyers, who go through all kinds of insane rationalizations.

So, help me out: explain how the situations we highlighted here are signs of a healthy patent system. You can't. Because it isn't. The system is a complete joke. You should be embarrassed.

Re: honest person

> I don't know how any honest person can defend this system.

I find a lot of honest people think whoever does something first should own it. They regard anything later as a copy.

It is a dangerously ill informed point of view. Progress in science and practical things does not resemble copying off someone's exam or homework. Famous advances in history came predominantly to multiple different people or groups doing their own work about the same time.

When it comes to patents the most valuable ones are those which are broad enough and obvious enough to be unavoidable by anyone working in the field. The words in the law may say novel and non-obvious but the best trolling is found suing over things everyone does naturally.

Consider pinching an image. If the folks making touch screens just delivered new hardware able to record multiple touch points at once and your job is writing software to use it could you possibly miss pinching? There aren't many different motions out there for two fingers. They can get closer, they can get farther, they can move in parallel and they can spin around each other.

Many honest people do actually embrace this idea of first to do something owns it. We get taught something close in school when our teachers demand we don't copy homework or exam questions. We also get taught mythic legends of inventors like Edison while passing over their dishonest business tactics and the other genuine inventors who got trampled.

It is one thing to award fame for first but quite another to give out monopoly ownership. It makes everyone poorer when someone goes to the patent office. Doing your own work, using your own invention is not safe. An ethical standard would require answering the following question: Would we be able to do this if not taught how by this patent? If the answer to knowing does not trace back to the patent then no monopoly. It could rationally mean competition between competing independent patents.

Software is just an extreme case, one where anyone doing a day's work programming steps on dozens of unknown and unknowable patents like so many land mines.

There is an important category of work today where the answer is simple once known but painfully expensive to learn in the first place and that is pharmaceuticals. Even there it is easy to trace back the how you know test. Who paid for the expensive study to show the drug works?

Honest people often think mistaken things. Dishonest people make a lot of money thereby.

Re: Don't hate the player?

Re: Re: honest person

I find a lot of honest people think whoever does something first should own it. They regard anything later as a copy.

It is a dangerously ill informed point of view. Progress in science and practical things does not resemble copying off someone's exam or homework. Famous advances in history came predominantly to multiple different people or groups doing their own work about the same time.

Case in point: calculus, independently "discovered" by both Newton and Leibniz. Newton was "first to invent", but Leibniz was "first to file".

The patent system in its day fostered an invention culture of cams, gears & levers. Software was not envisioned thereby. Software is a strategic arrangement of logical modules. Just because you finally got your arrangement of modules to run right doesn't mean you're entitled to a patent. You & your modules just ain't that important. Get over yourself. There's some unknown nobody in Dubuque who could write better modules than yours.

Do software patents require that the source be disclosed? No? Then the system encourages secrecy. Everything that isn't a deep, dark "trade secret" is a target for trollery.

Even though it actually won in court, after spending an astounding $3 million fighting the lawsuit, the company was basically out of money

It will never happen, but if the company claiming infringement loses they should pay all court costs for the other side. That would make them consider possible court action very carefully.

At the moment it's sue then on top of their own court costs:
Lose: Possibly put a competitor out of business, or at the very least cripple their cash reserves
Win: Get damages
So they can win either way. Putting the defendant's costs into the equation would balance it out a bit.

Re: Re: Re: Re: Re: Re: 22 year old

Re: Re: honest person

Consider pinching an image. If the folks making touch screens just delivered new hardware able to record multiple touch points at once and your job is writing software to use it could you possibly miss pinching? There aren't many different motions out there for two fingers.

Take for example the tap to zoom. Let's take a sane, rational look at that
patent.

1) Mouse click to zoom has been around for ages. It was in Yahoo maps, before
Google Maps were even a twinkling. I don't have a date on it. It predates the
Apple products, I know that much. Mouse-click to zoom was in other things too.

2) Smartphones don't have a physical keyboard. Smartphones don't have a mouse
device. Smartphones only choice for interacting is a stick/finger. That *is for
all intensive purposes, the keyboard and mouse device. Hence the finger is the
mouse.

Ergo, anything obvious to do with a mouse is also obvious to do with a finger or
stick. Just because something is a new field of use, doesn't mean it required
any mental creativity. To, appropriately, paraphrase Forest Gump, obvious is as
obvious does.

Finally, that means you are limited to things you can do with a finger(s).

So, that's pretty much it. On a hard flat surface, poking and tapping are the
same, as are grab and pinch , as are push/pull/swipe/draw.

That leaves:
1) swipe,
2) tap,
3) pinch.

And combinations of each of those things, yielding 8 possible unique
combinations, and an infinite amount of ever more complex combinations. The
problem with combinations is remembering them. So the intuitively obvious
solution is to opt for the simplest combinations, of which there are 3.

national disgrace

Oh, I assure you it's become quite international long time ago ;-)
And, as with every shining example of perfectly working bureaucracy, it's being widely adopted worldwide, although US officials are doing everything in their power to prevent this gem of american creativity from being stolen by other nations...

Re: Re: Re: Re: Re: Re: Re: 22 year old

I didn't say "only the data I present here." I said "the data." I've looked at all kinds of data. None of it suggest the patent system is working... other than for a few patent lawyers, who go through all kinds of insane rationalizations.

And yet, the only data you share on this blog is data that supports your narrative. Why not discuss data that shows how the patent system is fostering innovation and economic activity? It exists; you just choose not to discuss it.

So, help me out: explain how the situations we highlighted here are signs of a healthy patent system. You can't. Because it isn't. The system is a complete joke. You should be embarrassed.

The situations you highlight here are indeed unfortunate, but they are indicative of a system that needs reform, not scrapping. Furthermore, the situations you highlight are not representative of the garden-variety activity involving patents and patent application. You merely highlight the situations that you find the most distasteful and act like they are the norm, not the exception. That's not providing a fair commentary on the patent system today; that's being a shill for a particular viewpoint.

Re: Re: Re: Re: Re: Re: Re: Re: 22 year old

I'm sorry, but did you even read the article you linked to? What "data" in that article shows how the patent system is "fostering innovation and economic activity?" All I got from that article is that companies a) better spend a lot researching patents to avoid getting sued, and b) join up with other companies to avoid getting sued. So please enlighten us all on what in that article actually shows how the patent system is beneficial to innovation? Or did you think no one would actually take the time to read what you linked to?

Patents

As a holder of several patents, I can tell you that there was a time when getting a patent meant something.
There was a time when a patent examiner did his job and if something was obvious to someone skilled in the art, it was NOT patentable.
Today the examiners seem to be of the mind to grant the patent and let the courts determine if it is a valid patent or not. (Income the lawyers.)
AND FAR TOO MANY ENGINEERS ARE MORE DRIVEN BY $ THAN ETHICS. THEY WILL APPLY FOR A PATENT THEY KNOW SHOULD NOT BELONG TO THEM OR APPLY FOR A PATENT ON SOMETHING THEY KNOW IS OBVIOUS TO ANYONE SKILLED IN THE ART.
We seem to have lost our moral compass and a willingness to do what is right.
I believe that some of our downfall is driven by a society where it is OK for lawyers debate the meaning of IS when they know well what it means, but it does not fit their objective.